University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2006 Judicial Autonomy in a Political Environment Richard A. Posner Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Richard A. Posner, "Judicial Autonomy in a Political Environment," 38 Arizona State Law Journal 1 (2006). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. JUDICIAL AUTONOMY IN A POLITICAL ENVIRONMENT Richard A. Posnert Thank you very much, Randy, for a most generous introduction. It is a pleasure to be here to talk about judicial autonomy. Of course, judges are biased in favor of judicial autonomy, so you will have to be critical as you listen to me. Actually, I'm not as strong a proponent of judicial autonomy as some judges are, and I don't think I would have titled my talk, as the organizers suggested, "maintaining judicial autonomy in a hostile climate," although I certainly agree that there are serious issues concerning judicial autonomy. And I know that it is a very timely issue for Arizona, making this a very good time and place to be talking about the subject. It is important in the state court system of Arizona because there is pressure, I understand, to alter your system of selecting judges, either by requiring confirmation by the Arizona Senate or by having judges elected rather than appointed; we have elected state judges in Illinois and Wisconsin, two of the Seventh Circuit states, which is my domain. Another issue of judicial autonomy that is important to Arizona concerns the federal courts, because Arizona is part of the Ninth Circuit and there is a movement afoot to split the Circuit into two circuits-a movement that has been gaining momentum for many years and may be on the verge of adoption. Let me say first of all that I think your present system of selecting state judges is very good and that proposals to alter the system are misconceived. I am much more sympathetic to the suggestion for dividing the Ninth Circuit in two. I will explain these points, but the main point that I want to make in this talk is that judicial autonomy cannot be the be-all and end-all of thinking about the courts because the issue of autonomy is the issue of the place of courts in a democratic system, and our democracy requires a degree of judicial autonomy but also of checks and balances. Just as the other branches of government are subject to checks and balances, judges must not be treated as monarchical or oligarchical figures immune from all democratic control. Moreover, judges themselves have a certain t Judge, United States Court of Appeals, Seventh Circuit; Senior Lecturer, University of Chicago Law School. This is the revised text of an address sponsored by the Antitrust Section of the Arizona State Bar, delivered on March 6, 2006 at the Sandra Day O'Connor College of Law at Arizona State University. HeinOnline -- 38 Ariz. St. L.J. 1 2006 ARIZONA STATE LA W JOURNAL [Ariz. St. L.J. responsibility for maintaining judicial autonomy. There is such a thing as irresponsible judicial action that supports movements to restrict judicial autonomy, so we judges have to operate with a degree of self-restraint if we want to preserve our privileged position. I have said that the real issue of judicial autonomy is the place of courts in a democratic system. So the first thing we have to understand is what we mean or should mean or want to mean by democracy-it is very much a contested term. The purest form of democracy-and one with echoes in America, particularly in those western states, such as Arizona, that have referenda and in the New England town meeting-is the democracy that flourished for several hundred years in ancient Athens. It was what political scientists call direct democracy or popular democracy. It was democracy in quite a literal sense, once one allows for the fact that only a fraction of the Athenian population consisted of citizens-maybe 25,000 in a much greater population, the rest being women, slaves, and resident aliens-and only citizens participated in the democratic process. But allowing for that important qualification, Athens really was a pure democracy. There was no legislature in the sense of a body of representatives; the citizens were the legislators, just as they are in the case of our modem referenda. Any citizen who chose to attend the Athenian Assembly would be a participating legislator. And just as there were no professional legislators, there were no professional judges either-just juries. There was no legal profession; there were no lawyers; and there were no law schools. The closest Athens came to having a legal profession was in permitting litigants to hire orators, such as Demosthenes, to write the speeches they would make to the jury. Orators thus constituted a kind of nascent legal profession, but one very far from what we think of as a profession. Executive officials, with very few exceptions, were chosen by lot. That might not seem like a particularly democratic process, but actually it was critical to the Athenian concept of democracy. The Athenians believed, I think correctly, that only if officials were chosen by lot could the emergence of a ruling class be prevented. What I have described was what was understood to be democracy until the eighteenth century and the creation of the United States, rather than just one form of democracy. Democracy was the political system in which the citizens made all political decisions. Representative democracy was unknown. Athenian-style democracy was regarded as an unworkable system. It had worked for Athens for a while, but after the end of Athenian democracy in 1. The thoughts on democratic theory presented here are developed at greater length in my book Law, Pragmatism,and Democracy (2003). HeinOnline -- 38 Ariz. St. L.J. 2 2006 38:0001] JUDICIAL AUTONOMY the fourth century B.C., there were no democratic polities until the United States. And our system, as formulated in the Constitution of 1787, was not actually a democratic system. That is what we call it now, and that is what we think of it as being, but in fact it was and is a mixed system. There are democratic elements; there are also oligarchic elements; there are even monarchical elements. The framers took the existing English monarchy and adapted its structure to American conditions and values. They gave the president the monarchical prerogatives of pardoning, command of the armed forces, conduct of foreign relations, and the general executive power, that is, the power of executing laws and administering the executive branch. They gave to Congress the powers of Parliament. And they gave to the judiciary the independent authority that the English judiciary had gradually accrued. The framers did not think of the judiciary as a democratic body; it was an aristocratic body, and that was also how the framers envisaged the Senate. The judges were to be appointed by the President (subject to Senate confirmation), and the Senators were to be selected by the state legislatures. The House of Representatives, consisting of popularly elected legislators, was the only fully democratic part of the federal government because the President and Vice President, the only elected executive officials, were to be elected indirectly through the electoral college. Of course, there have been changes-in particular, Senators are now popularly elected and the presidential electors are selected by popular vote-but the basic structure of 1787 remains, and it is a structure that is best described as a mixed system with democratic, oligarchic, and monarchical elements. When we call it "democracy" or, with greater precision, "representative democracy," we are not misspeaking as long as we understand that these terms describe a structure of government that is remote from populist, or direct, democracy. The best theorist of our actual existing democratic system is the economist Joseph Schumpeter, who in 1942 published a book called Capitalism, Socialism, and Democracy that in just a few pages explained American democracy. He defined it simply but accurately as a system in which the highest officials are forced to stand for election at relatively short intervals. That is the long and the short of it. We have the President and the governors of the states and the federal and state legislators and at the state level other officials, including in many states judges. All these have to go before the electorate periodically, and that is the democratic system. It has nothing to do with citizens' being "self-governing" in any realistic sense. It has nothing to do with not having a governing or ruling class; we have one-they are the politicians and the higher appointed officials. It is just HeinOnline -- 38 Ariz. St. L.J. 3 2006 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. that the principal rulers do have to submit to occasional vetting (and vetoing) by the general public, the electorate. The significance of this realistic picture of the American political system is that there is nothing in Schumpeter's theory, or I think in the reality of our system, which suggests that the citizens are, or should even feel obligated to become, well informed about issues. They do not vote on issues. They vote for people. And all they have to know-all they do know, in most cases-is whether they want this person rather than that person to be their representative (whether legislative, judicial, or executive) and, after he has served a term, whether he should be kicked out.